Kreis: An unfair attack from AP

Editor’s note: This oped is by Donald M. Kreis, an assistant professor of law at Vermont Law School, where he also serves as associate director of the Institute for Energy and the Environment. He is the former general counsel of the New Hampshire Public Utilities Commission.

Plagiarism is in the eye of the beholder.

Take, for example, my former employer – the venerable newsgathering cooperative Associated Press. Well before I was there from 1981 to 1986, and certainly thereafter, central to AP’s business model was what we euphemistically called “rewrite” – the practice of taking original reporting out of the pages of an AP member newspaper and “turning it around” for dissemination on the AP news wires.

This is not, in fact, plagiarism – but it does give rise to a certain irony in Associated Press using that word in connection with a pleading submitted to the Vermont Public Service Board by Sarah Hofmann, the chief lawyer at the Department of Public Service. Hofmann, according to an AP story that appeared in the Barre Times Argus, is “under fire for apparently plagiarizing long passages from a utility lawyer’s writing in a case in which both the department and utilities are fighting a proposal to give low-income residents a break on their electric bills.”

AP reported that “more than two of six pages are word-for-word identical to a filing made in January by David Mullett, a lawyer for the Vermont Electric Cooperative and municipal electric departments.”

Public Service Board proceedings typically involve multiple parties, including the Public Service Department (which is the executive branch agency charged with representing utility customers in proceedings before the quasi-judicial board). More often than not, some of those parties find themselves agreeing with each other on some or all issues in a case. They adopt each other’s arguments as a matter of routine in these circumstances.

Briefs like the ones Mullett filed on behalf of the electric cooperative are not created as protected intellectual property. They are substantive positions on contested legal and factual issues. If anything, it was good news for the co-op that Hofmann was adopting its arguments in her filing. Calling what she did plagiarism is unfair and reflects a worrisome willingness on the part of AP to be manipulated by parties who are opposing the Public Service Department before the Public Service Board.

In this instance Hofmann’s accuser is apparently the AARP, which is the group proposing rate reductions for low-income members of the electric co-op and other utilities. But, at least in the AP story, the AARP did not use the highly charged “P” word. Rather, the organization’s Vermont advocacy director, Philene Taormina, posed this rhetorical question when interviewed by AP:
“Are you really zealously representing your client, the public, when you’re taking an argument from a regulated utility?”

The short answer to this cheap shot of a question is: Yes.

A longer answer, from the standpoint of legal ethics, is that Hofmann’s “client” is not technically the public but, rather, the political appointee whose job includes developing a policy agenda that, in his judgment (and presumably that of his boss, the governor) is in the best interests of the utility-using public. This is an established principle with respect to lawyers who represent government agencies.

Chiming in on the AP’s unfounded plagiarism allegation against Hofmann is my Vermont Law School colleague, Brian Porto, who teaches in the legal writing program at VLS.
According to Porto, as quoted by AP, “If you’re taking someone else’s idea and not citing the person, and you’re falsely suggesting that those ideas are your own, certainly within the definition of plagiarism that comes within it.”

Porto is correct that if a law student did as he described, submitting such work as her own to a VLS professor, the student would be guilty of plagiarism as defined in the VLS academic regulations. But, to state the obvious, VLS’s rules do not apply to pleadings submitted to the Vermont Public Service Board. Nor do they apply to AP – which, in light of “rewrite,” would be guilty of such plagiarism hundreds of times a day.

The AP story also quoted attorney Sandra Levine of the Conservation Law Foundation – another advocacy group with frequent business before the Public Service Board and one that typically disagrees with the Public Service Department. According to AP, Levine said it is “very unusual to have identical language from two different lawyers submitted in the same case without attribution to the original source.” She’s entitled to her opinion, and also to her much more relevant observation that Hofmann’s wholesale adoption of the electric cooperative’s argument would be worrisome if it is “indicative of a lack of independence from the department in its analysis or evaluation of this issue.”

Those questions – which involve examining the merits of the position the Public Service Department is taking with respect to efforts to use utility bills to require utility customers generally to subsidize the needs of low-income customers particularly – are the ones AP should be writing about. But facile and unfounded allegations of plagiarism are much easier to produce, unfortunately.

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